People v. Racine

• Decision Date: 17 August 2010
• Docket Number: No. 4132/09.,4132/09.
• Citation: 28 Misc.3d 1223,2010 N.Y. Slip Op. 51440,957 N.Y.S.2d 638
• Parties: The PEOPLE of the State of New York v. Fedley RACINE, Defendant.
• Court: New York Supreme Court

28 Misc.3d 1223

957 N.Y.S.2d 638

2010 N.Y. Slip Op. 51440

The PEOPLE of the State of New York

v.Fedley RACINE, Defendant.

No. 4132/09.

Supreme Court, Kings County, New York.

Aug. 17, 2010.

The Office of Charles J. Hynes, District Attorney for Kings County by Assistant District Attorney John Sharples, Esq., for the People.

Cynthia Colt, Esq., The Legal Aid Society, for defendant.

JOEL M. GOLDBERG, J.

The defendant has been indicted for various charges involving his allegedly on February 27, 2009 possessing and firing a handgun on the street injuring a bystander.

On May 5, 2010, this Court commenced a Huntley/Wade/Dunaway hearing on the defendant's motion to suppress identification testimony and a statement. On this date, the only witness who testified was Detective Alberto Zapata. (The page numbers of references to his testimony are preceded by “Z.”) Following this testimony, the People requested and were granted the opportunity to call the identifying witness, Police Office Pedro Martinez, who made identifications of the defendant from surveillance videos, a photographic array, and a lineup. Office Martinez testified on June 15, 2010. (The page numbers of references to his testimony are preceded by “M.”) The defendant and the People have submitted post-hearing papers in support of their respective position on the motion, each set being dated July 7, 2010. For the reasons stated below, the motions to suppress are denied.

I. FINDINGS OF FACTA. The Shooting

Police Officer Pedro Martinez was assigned to the Transit Bureau of District 32 for seven-and-a-half years and is responsible for patrolling the subway system. In the Police Academy, he received the usual training in observing people so as to be able to later recognize them which is a situation he regularly confronted while working (M.10–12). No further details of this training were elicited.

On February 27, 2009 at about 4:30 p.m., Martinez was off duty, standing on the sidewalk in front of 835 Ocean Avenue on the east side of the street facing across Ocean Avenue waiting for his son to return from school from the subway station to the north on Cortelyou Road (M. 12–14; Z. 4). To the right of Martinez was Cortelyou Road and to his left was Dorchester Road (M.14). Martinez was unarmed, in plainclothes, and was waiting by himself (M. 45, 49; Z. 4–5). He stood looking directly across the street at a residential building and a parking garage that had a driveway that opened onto Ocean Avenue (M.14). There were no vehicles parked in the driveway at that time. Ocean Avenue had parking on both sides of the street and four lanes of traffic which at that time of day was usually heavy (M .14, 17, 48).

At that time, Martinez heard gunshots to his right coming from the direction of Cortelyou Road. He turned to his right towards the sound and saw four young males running from that direction on the other side of Ocean Avenue approximately seven or eight car lengths away (M.15, 27, 46). Martinez did not look to see if anybody was hit or who was being shot at (M.68). He first saw the four men close to Cortelyou Road on the other side of Ocean Avenue (M.16–18). One male (later identified as the defendant) was running behind the other three males holding a black gun in his right hand pointed behind him back towards Cortelyou Road. He was running south towards Dorchester Road as he was shooting behind him with his right shoulder turned towards Cortelyou Road (M.18–19, 49, 53). Martinez could not recall whether the shooter was also turning his head while he shot (M.52). Martinez recalled the shooter was a black male, approximately 17 to 19 years-old, 5'8? to 5'10? with short hair, and wearing a black jacket with a black backpack and dark jeans (M.19–21, 58). The other three men ran closely together approximately ten yards in front of the shooter and remained in front of the shooter the entire time Martinez observed them (M.21, 56, 58).

The four men continued running on the west side of Ocean Avenue on the sidewalk past the garage. It was daylight and, though there were cars parked on the street, there was nothing obscuring Martinez's view of the left side of the shooter's face or the full bodies of all four men (M.22–23, 61). Due to the rapidity of the event, Martinez could not recall whether he also saw the right side of the shooter's face (M.61). Martinez saw the shooter fire approximately two or three shots straight up the west side of Ocean Avenue towards Cortelyou Road (M.24). At their closest point, the shooter was directly across Ocean Avenue from Martinez (M.27).

After running past the driveway directly across from Martinez, all four men continued on the sidewalk of the west side of Ocean Avenue for another five car lengths and then ran diagonally across the street to the east side heading towards Dorchester Road. When the men reached Martinez's side of Ocean Avenue they were approximately five or six car lengths away (M.27–28). Right before the shooter crossed the street, Martinez observed him put the gun in his right jacket pocket (M.35).

Once on the corner of Ocean Avenue and Dorchester Road, the three men made a left turn onto Dorchester Road. The shooter followed, and Martinez lost sight of them (M.29–30). From when Martinez first saw the four men on Cortelyou Road until he lost sight of them on Dorchester Road, approximately one minute had elapsed (M.30). Martinez spent about five to ten seconds of that time looking at the shooter's face and the rest of that time looking “in general” at the four men (M.30).

After Martinez lost sight of the four men, he took out his phone to call 911 when he saw a police van turning on Cortelyou Road towards him. Martinez used his shield to flag down the van (M.30, 32). Martinez described the shooter to the officers as 5' 8? to 5' 10?, approximately 17 to 19 years-old, black jacket, black backpack. Martinez also described the other men as black, also 17 to 19 years-old, one of whom had a white bubble jacket with a sweater, chubby, 5' 6?, 180 to 200 pounds. The other two were described as wearing dark clothes, 5' 7? to 5' 10?. The police van then turned onto Dorchester Road, and Martinez remained on Ocean Avenue to wait for his son (M.32).

At approximately 6:15 p.m., Detective Alberto Zapata of the 70th Precinct, the lead investigator in this case, spoke in the hospital with a bystander, Marlene Jack, who had been shot in the hand while walking on Cortelyou Road and Ocean Avenue. She said she had been shot by a young black man, 18 to 19 years-old in an off-white zippered jacket or bubble vest (Z.36, 38). Zapata believed from further investigation that the shooter described by Marlene Jack was a second shooter involved in the incident. Marlene Jack has apparently made no identification of the defendant or anyone else.

B. Computer Photo Identification Attempt

Later that evening at approximately 10 p.m., Martinez was at the 70th Precinct and met with Zapata. Detective Zapata showed him photographs on a PIMS computer but Martinez could not identify anyone (M. 33; Z. 42, 45). The defendant's photograph should have been included in the 1,582 photographs viewed by Martinez, because the defendant's photograph was on file and fit the PIMS profile of photographs selected for viewing: “black males between 17 to 20 years-old, arrested in the 67th or 70th Precincts”. Prior to viewing the photographs, Martinez had repeated his descriptions of the men he saw to Zapata and had told Zapata he believed he could identify the person he saw shooting on Ocean Avenue (Z.41–43).

C. Surveillance Video Identification

On February 29, 2009, Zapata looked at various surveillance videos taken on Ocean Avenue from Cortelyou Road to Dorchester Road, from Dorchester Road to East 21st Street, and on East 21st Street from Dorchester Road to Ditmas Avenue (Z.48). Videos at two locations on East 21st Street depicted four men running who fit Martinez's descriptions. From a video inside one of the locations, an apartment building located at 543 East 21st Street, Zapata saw two of the men in an elevator, one of whom was facing the camera. Zapata made a still photograph from this video and showed it to residents of the building (Z.34–35). An “anonymous female” in the lobby informed Zapata that one of the men was “Fedley” who lived on the fourth floor. Zapata then returned to the precinct, conducted a computer check, and ascertained the defendant's name (Z.35). (Neither the surveillance videos nor the still photograph were introduced in evidence. Zapata testified neither person in the elevator was wearing a bubble jacket [Z. 9]. Martinez, however, testified one of the people entering the elevator was wearing a white jacket and the other person was the defendant [M. 39]. Martinez also testified the person in the white jacket “stands out” in the videos from the others [M. 38].)

The next day, March 1, 2009, Martinez met with Zapata at the 70th Precinct to look at the surveillance videos that Zapata told him were taken at approximately 4:45 p.m. in the neighborhood on the day of the shooting (Z.49). The first video shown was outside surveillance from 520 East 21st Street. Martinez recognized the buildings in the video and the clothing and general appearance of the four black males as they were depicted turning the corner on Ocean Avenue toward Dorchester Road (M. 34–36, 65–66; Z. 8). The second video depicted two of the men entering the front of an apartment building at 543 East 21st Street. Martinez recognized the male in the white bubble jacket with another person (M. 36–37; Z. 9).

Zapata then told Martinez that the third video was taken in the elevator of the building the two males entered in the previous video. Martinez recognized the male in the white bubble jacket and the person with him as the shooter (M. 38–39; Z. 50–51). He recognized the shooter by his face and the black jacket and black backpack. Martinez watched the videos for about ten minutes...